(Posted December 29, 2016) The Supreme Court clears one last appeal off the decks today, before the close of 2016. Payne v. Commonwealth is a criminal appeal of convictions for robbery and companion firearm charges. The victim answered an ad on the Internet to buy a used laptop computer. The purported seller invited him to meet at an apartment complex after dark. At the appointed hour, a man approached the buyer and invited him to come inside to see the laptop, which was charging.

At this point, the victim wisely smelled a rat, so he “surreptitiously removed his wallet and watch and put them in the center console of his car” before following the seller inside. There, the buyer found a different kind of hardware: a second man held a knife while the first man blocked his exit. Before long the first man pulled a pistol. The robbers demanded money. The victim, remarkably quick-witted for such a stressful situation, explained that he hadn’t brought money; if he liked the computer, he planned to go to a bank to withdraw the purchase price.

The knife-wielding robber went through the victim’s pockets and found only car keys and a cell phone. The frustrated robbers fortunately didn’t stab or shoot him, but they did take his cell phone and warn him not to follow as they ran away.

The victim wisely didn’t chase them. Instead, he flagged down a passerby, borrowed his phone, and called police. He gave an officer a description of the robbers and of the events.

Two months later, a detective interviewed Payne, today’s appellant, who lived a quarter-mile away. Payne denied any involvement, but suggested that a cousin may have been involved. The interview went well for Payne, as the detective believed he was telling the truth. She later interviewed the victim and showed him several photographs. He picked Payne out as the gun-wielding robber, but given her earlier interview, the detective didn’t have much confidence in that.

What happened next, however, turned the tables. Police caught a man who they believed had held the knife in the robbery. When the victim came into court to testify at that defendant’s preliminary hearing, he immediately spotted Payne and recognized him as the man with the gun. This produced a Perry Mason moment: “When [the victim] was asked during his testimony at the preliminary hearing if he recognized the man who had held the handgun, he identified Payne in the audience.” Payne soon had the right to remain silent.

That evening, a prosecutor sent an e-mail to the detective who had believed Payne’s story, telling her about the day’s courtroom drama. Today’s opinion sets that e-mail out in full after adding numbers for ease of reference. Here it is:

[1] Actually I gave [the victim] a photo line-up with [Payne] and he did pick him out. [2] The problem is, [Payne] looks like [his cousin’s] friend [Rosser] who we initially thought was helping [Payne’s cousin] with the crime. [3] Attached [are] some pictures I found of [Rosser]. [4] I felt very unfortable [sic] getting warrants on [Payne] just off of a photo id since I had interviewed him on multiple occasions and he appeared to be truthful. [5] To date, I’m still not sure he was involved? [6] I have all of this documented in my case file. [7] Unfortunately I ran out of time before leaving [for forensics training] and didn’t put it in a supplement form. [8] I don’t have access to mobile while [at training] therefore I can’t type a supplement. [9] I don’t return to work until April 15th. [10] I told [Officer Musser] that if he needed my case file to get Sgt. Herrick to make him a copy of it. [11] If you need something before I return let me know and I’ll do my best to make arrangements to get it to you. [12] If you need a supplement, I can go in over the weekend and try to get it done.

Payne sought to introduce this e-mail at trial. The judge balked, but agreed to let him introduce sentences 1-3 and 6. The court found the remaining sentences immaterial to the issues being tried. Payne appealed this ruling, and today the justices affirm it. The court finds that sentences 4 and 5 go to the ultimate issue, and therefore invaded the jury’s province. Sentences 7-12 didn’t fit within the doctrine that Payne urged, in that they don’t “discredit the police investigation.” Nothing in those sentences suggests that there was anything untoward in the investigation; they’re mostly dry administrative details.

Payne appealed one other issue. He offered a jury instruction that was modeled on one from a federal prosecution, and that the Fourth Circuit had approved. That instruction (also set out verbatim in today’s opinion) relates to four sets of circumstances that a jury should consider in evaluating the reliability of an eyewitness identification. The trial court refused it, ruling that the topic was adequately covered in other instructions, especially good ol’ VMJI 2.500, Credibility of Witnesses. It also ruled that the proffered instruction could mislead the jury by giving it an unduly restrictive checklist of four items.

In this regard, state-court practice is quite different from that in federal courts. In US District Court, a judge is allowed to comment on the evidence, including singling out certain items or facets for special emphasis.

Not so in Virginia courts. Virginia’s trial judges are admonished not to comment, and doing so can result in a reversal and a new trial. The Supreme Court today agrees with the trial court and the Court of Appeals that the judge got this one right. The justices are careful to state that they aren’t categorically outlawing any kind of instruction based on the federal case. Justice Mims, writing for a unanimous court, opines that

It is not difficult to foresee a defendant proffering a jury instruction similar to Payne’s, but drafted to avoid the problem of focusing the jury’s attention on a limited number of factors affecting the reliability of an eyewitness identification, thereby seemingly elevating the importance of those factors vis-à-vis similar factors not included in the proffered instruction. Provided that such an instruction is supported by the evidence, it would correctly state the law and a trial court would not err by giving it, at its discretion.

Because I’m not a criminal-defense trial lawyer – a career limitation that redounds to the benefit of every one of my potential criminal clients – I cannot say what such an instruction would actually look like, and as for the court’s crafting one for us … well, Justice Mims ain’t talkin’.